Conway, III v. Houk

Filing 320

SUPPLEMENTAL REPORT ON MOTION TO STAY - The Magistrate Judge declines to recommend any modification of the prior decision. Objections to R&R due by 1/2/2024. Signed by Magistrate Judge Michael R. Merz on 12/18/2023. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JAMES T. CONWAY III,
Petitioner,

:

Case No. 3:07-cv-345

-vs-

District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

TIM SHOOP, Warden,
Chillicothe Correctional Institution,
:
Respondent.
˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭

SUPPLEMENTAL REPORT ON MOTION TO STAY

˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭˭
This capital habeas corpus case is before the Court on Petitioner’s
Objections and Appeal (ECF No. 317) from the Magistrate Judge’s Decision and
Order Denying Petitioner’s Motion to Stay the proceedings. (ECF No. 316). The
Warden filed no objections, but has responded to Petitioner’s Objections. (ECF
No. 319). District Judge Black has recommitted the matter for reconsideration
and a supplemental report in light of the Objections. (ECF No. 318).
Citing the Ohio Supreme Court’s recent decision in State v. Bethel, 167
Ohio St.3d 362 (2022), Petitioner moved to stay these proceedings so he could
return to the state courts for a third time in order to pursue the same Brady
and conflict of interest/ineffective assistance of counsel claims the state courts
have previously dismissed.

(ECF No. 313).
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Petitioner argued the Ohio

Supreme Court’s decision in Bethel expanded the scope of the successive
postconviction remedies that Petitioner previously pursued, and opened the
possibility of Petitioner’s pursuing a motion for a new trial, thus rendering
portions of his second, tenth and eleventh claims for relief unexhausted. (ECF
No. 313, at PAGEID # 21664).

Specifically, Petitioner argued that Bethel

lowered the standard of proof for satisfying Ohio’s successive postconviction
jurisdictional prerequisites set forth in Ohio Rev. Code § 2953.23(A)(1), and
also removed a time limitation for seeking a new trial based on newly
discovered evidence pursuant to Ohio Crim. R. 33. Citing several non-binding
decisions, Petitioner argued his once exhausted claims became unexhausted
when the Ohio Supreme Court modified applicable state procedure.
Citing several recent decisions from Judges within this District, the
undersigned concluded the Bethel decision did not render Petitioner’s claims
unexhausted. In his Objections, Petitioner argues the Magistrate Judge “erred
both legally and factually when he held that Conway was not required to return
to state court to exhaust the claims and facts contained in his First and
Second Successor Post-Conviction Petitions.”

(ECF No. 317, at PAGEID #

21708-709.)
First, Petitioner contends the Decision and Order is contrary to law.
Petitioner argues that he “cited several cases for the proposition that a
previously exhausted, defaulted claim becomes unexhausted when the state
courts’ interpretation of a previously unavailable state court remedy becomes
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available through judicial interpretation or legislative action.” (Id. at PAGEID #
21708). Petitioner proceeds to cite three cases, all of which pre-date enactment
of the AEDPA and none of which are from the Sixth Circuit.

Specifically,

Petitioner cites Texas v. Payton, 390 F.2d 261, 270-72 (5th Cir. 1968), Cage v.
Auger, 514 F.2d 1231, 1233 (8th Cir. 1975); and United States v. ex rel. King, v.
Lavalee, 306 F.2d 199, 202 (2nd Cir. 1962). The cases Petitioner cites involve
the creation or significant expansion of new state procedures and are
distinguishable from the instant case.

Additionally, none of the cases

Petitioner cites are binding on this Court.
Notably, Petitioner does not address or mention the calendar year 2023
decisions by the Judges of this District, including that of Chief Judge Marbley
in Petitioner’s other death penalty case, that are directly on point and flatly
reject Petitioner’s arguments herein regarding Bethel and exhaustion.

See

Conway, III v. Warden, Case No. 2:07-cv-947, ECF No. 229 (S.D. Ohio Mar. 15,
2023) (Marbley, C.J.) (citing Keener v. Ridenour, 594 F.2d 581, 584 (6th Cir.
1979) for proposition that where several alternative State remedies are
available, exhaustion of one of those alternatives on a particular issue is all
that is necessary because § 2254 does not require repetitious applications for
relief). See also Kinley v. Bradshaw, No. 3:03cv127, ECF No. 146, 2023 WL
6057368, *4 (S.D. Oh. Sept, 18, 2023) (finding Bethel did not render exhausted
claims unexhausted, because a habeas litigant is not “required (or permitted,
the Court would add) to repetitively present his federal claims to the state
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courts once he had done so in one full round of the state’s established
procedures”); Were (n.k.a. Mateen) v. Warden, Case No. 1:10-cv-698, ECF No.
192 (S.D. Ohio Mar. 15, 2023) (Watson, D.J) (finding Bethel does not require
re-exhaustion of habeas litigant’s claims). Nothing in the cases cited by
Petitioner persuades this Court that the District Judges referenced above are
wrong.
Secondly, Petitioner objects to the “alternative” decision of the Magistrate
Judge that the “newly interpreted remedies would not be available to Conway
because the state courts rejected the merits of the claims when ruling that
Conway could not meet the previous state court restrictions on successor
petition.” (ECF No. 317, at PAGEID # 21709.) Petitioner claims the Magistrate
Judge’s analysis was “limited to the state court ruling on Conway’s Brady
claims in his successor post-conviction petition” and “did not address the
newly expanded new trial motion remedy or Conway’s ineffective assistance of
counsel claims.” (Id.)
The undersigned noted that when Petitioner previously returned to the
state courts to exhaust the claims at issue here, the state courts determined
Petitioner’s claims were either barred by res judicata or did not meet the
gatekeeping requirements of Ohio Revised Code § 2953.23(A)(1). Importantly,
in determining Petitioner failed to satisfy Ohio’s jurisdictional prerequisites for
consideration of a successor petition, the state courts assumed, at least in
connection with his Brady and conflict of interest claims, that Petitioner
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satisfied the “unavoidably prevented” hurdle of the § 2953.23(A)(1)(a) inquiry.
Thus, the main issue in Bethel – i.e. whether a timeliness or due diligence
requirement could be imposed upon a petitioner in connection with the
discovery of Brady material – was not at issue during Petitioner’s first attempt
at filing a successive petition.
As the undersigned previously noted, it is possible the state courts could
reconsider Petitioner’s substantive allegations in a renewed successive petition
or motion for a new trial, but additional exhaustion is not required and does
not justify a further delay and stay of these proceedings.

Nothing in this

Court’s Order denying a stay prevents Petitioner from pursuing additional relief
while these proceedings are underway, and that is precisely what Petitioner has
elected to do in his other death penalty habeas corpus case. See Conway, III v.
Warden, Case No. 2:07-cv-947, ECF No. 242 (S.D. Ohio Mar. 15, 2023) (Notice
Petitioner Conway Will be Returning to State Court).
Accordingly,

the

Magistrate

Judge

declines

to

recommend

modification of the prior decision.
December 18, 2023.
s/ Michael R. Merz
United States Magistrate Judge

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